Opinion
11-P-611
03-09-2012
WARE REAL ESTATE, LLC & another v. TOWN OF WARE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant town of Ware (town) appeals from a declaratory judgment entered in the plaintiffs' favor after a bench trial. The town argues that (1) the Superior Court lacked subject-matter jurisdiction; (2) the plaintiffs do not have a valid special permit; (3) the property does not comply with frontage requirements; and (4) the plaintiffs' use of the property is prohibited under the zoning by-laws. We affirm.
The complaint was originally filed by the O'Riley Family Trust (trust) and then amended to include the trustees of the O'Riley Family Trust and ABC & D Recycling. Ware Real Estate, LLC, purchased the property from the trust after the complaint was filed.
Background. On review of a jury waived trial, '[t]he findings of fact of the judge are accepted unless they are clearly erroneous' and '[w]e review the judge's legal conclusions de novo.' T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 569 (2010). See Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005) ('[W]e are bound by a judge's findings of fact that are supported by the evidence, including all inferences that may reasonably be drawn from the evidence'). With this standard in mind, we summarize the factual findings of the judge, reserving some for the later discussions to which they pertain.
The plaintiffs are the owners and operators of a property located in Ware, consisting of twenty-one acres bounded by Route 9 to the east, the Ware River to the west, and abutting properties to the north and south. The property is bisected by a ninety-foot wide strip of land owned by the Commonwealth and that is used for a railroad line. The town assessor's map assigns one lot number and the town assesses one tax encompassing the entire property. The property is zoned 'highway commercial.'
In 1999, the O'Rileys, see note 2, supra, decided they wanted to enter the recycling business, and determined they would need a special permit. They appeared before the town's five-member planning board (board) to request that it consider their application for a special permit before an application for site plan approval because the latter is much more detailed and costly to assemble. The board agreed. The trust, see note 2, supra, accordingly submitted an application to the board on February 21, 2001. A hearing was scheduled for April 4, 2001, and notice was sent out. However, the board learned that one of its members intended to resign before the meeting and that another would be absent on the scheduled date of the hearing.
At all material times, the board has been established as a five-member board. Under G. L. c. 40A, § 9, inserted by St. 1975, c. 808, § 3, twelfth paragraph, a 'special permit issued by a special permit granting authority shall require . . . a vote of at least four members of a five member board.' Although only three of its members were present, the board proceeded to hear the trust's application on April 4, 2001, when all three members voted unanimously in favor of granting the special permit.
The same three members of the board again voted on the trust's application when it met on April 18, 2001. Although four members attended this meeting, the fourth member abstained from voting because of his absence from the previous meeting.
On July 20, 2001, the trust applied for site plan approval, and hearings were held on that application on September 5, 2001, October 3, 2001, and October 17, 2001. All five members of the board were present at each of the hearings on the site plan approval application. On November 7, 2001, the five members of the board voted unanimously: 'TO GRANT the application under Sections 2.5 [governing special permits] and 2.6 [governing site approvals] of the Zoning By-Law,' subject to fourteen special conditions.
Over the next several years, the plaintiffs obtained necessary authorizations from the Massachusetts Executive Office of Environmental Affairs, the town board of health, the Department of Environmental Protection (DEP), and the town building inspector to operate a construction and demolition (C&D) waste processing facility. Construction began on the property in the spring of 2005. The town's building inspector issued a certificate of occupancy for the waste processing facility on January 11, 2006, and DEP granted an authorization to operate permit on February 13, 2006.
The board's decision to allow the special permit was not recorded in the Hampshire County registry of deeds until January 28, 2010.
A special permit 'shall not take effect until a copy of the decision . . . is recorded in the registry of deeds for the county and district in which the land is located.' G. L. c. 40A, § 11, as amended by St. 2006, c. 205, § 9.
The history to the current dispute appears to be the plaintiffs' desire to accept municipal solid waste at the facility, and the town's refusal to approve such use. After the plaintiffs entered into a management agreement with a third party for the operation of the facility, the town expressed its concern that the management company, by filing a 'Verified Notice of Exemption' with the Federal Surface Transportation Board, was trying to federally preempt, and circumvent, the town's decision denying the plaintiffs' application to accept municipal solid waste. In addition, the town advised the plaintiffs that town counsel was of the opinion that (1) no special permit had been granted to the plaintiffs because only three members had participated in the vote on April 18, 2001; (2) even if a special permit had been granted, it had lapsed through nonuse; (3) the special permit was of no effect until it was recorded; and (4) the property consists of two separate parcels, with only the eastern one having sufficient frontage.
A short, but direct, exchange of electronic messages (e-mail) between the town manager and the plaintiffs followed, with the town manager stating that the plaintiffs 'must deal with the substantive zoning and other issues which it faces and no amount of vitriol or bluster will make these outstanding issues disappear.' The plaintiffs thereafter brought this suit, seeking declaratory and injunctive relief. The town's counterclaim sought the same.
1. Jurisdiction. The town argues that the Superior Court lacked jurisdiction because the plaintiffs failed to exhaust their administrative remedies. We review de novo the Superior Court's jurisdictional determination. Opare's Case, 77 Mass. App. Ct. 539, 541 (2010). However, we will not disturb the trial judge's subsidiary findings of fact unless they are clearly erroneous. Mass.R.Civ.P. 52(a), as amended 423 Mass. 1402 (1996).
The town is correct that where administrative relief has not been exhausted, declaratory relief under G. L. c. 231A is premature because there is no actual controversy. Wrentham v. West Wrentham Village, LLC, 451 Mass. 511, 514 (2008), and cases cited therein. Here, however, the town failed to show that there was any administrative avenue of relief available to the plaintiffs. The town does not challenge the trial court judge's finding that, as of the date of the filing of the complaint, 'no action against the plaintiffs or the Subject Property had been taken by the Building Inspector or the Town.' Nor does the town challenge the judge's finding that the 'Building Inspector had not issued a cease and desist order or a finding of violation or prospective violation.' In the absence of any action on the part of the building inspector or the town, we agree with the judge that the administrative procedures set out in the by-laws were not triggered or available. See Zoning by-laws §§ 2.660-2.665.
Relying on Whitinsville Retirement Soc., Inc. v. Northbridge, 394 Mass. 757, 764 (1985), (Whitinsville), the town also argues that declaratory relief under G. L. c. 231A, is not available 'to determine the validity and effect of [a] special permit.' The town ignores certain significant distinctions between Whitinsville and this case. First, Whitinsville did not involve G. L. c. 231A, but rather G. L. c. 240, § 14A. Second, and importantly, administrative remedies were available in Whitinsville that had not been exhausted. As noted above, no administrative route to relief existed here.
G. L. c. 240, § 14A, was of no application here because the plaintiffs were not seeking to challenge the validity of any by-law, regulation, or municipal ordinance. Whitinsville, 394 Mass. at 762-763.
The town also argues that the exchange of letters and e-mails preceding the filing of the complaint was not sufficient to create an actual controversy within the meaning of G. L. c. 231A, § 1. An actual controversy exists where there is 'a 'real dispute' caused by the assertion by one party of a duty, right, or other legal relation in which he has a 'definite interest,' in circumstances indicating that failure to resolve the conflict will almost inevitably lead to litigation.' District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 659 (1980), quoting from Bunker Hill Distrib., Inc. v. District Attorney for the Suffolk Dist., 376 Mass. 142, 144 (1978). Whether the exchange of e-mails and correspondence between the parties met this standard was a question of fact for the trial court to resolve. Cf. Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 119 (2011) (whether a party is 'aggrieved' by a zoning board decision and thus has standing to appeal is a question of fact for the trial judge). The May 7, 2010 letter identified four alleged defects in the plaintiffs' special permit, and states that they must be 'addressed' before moving forward. A heated exchange of e-mails followed, and the town manager emphasized that these issues would not disappear. On this record, we cannot say that the Superior Court judge's finding of an actual controversy was clearly erroneous. See Woods v. Newton, 349 Mass. 373, 376 (1965) (controversy existed where plaintiffs attempting to make use of land were 'in dispute with public officials concerned'), S. C., 351 Mass. 98 (1966).
2. The special permit. The town argues that the plaintiffs do not have a valid special permit to operate a C&D waste processing facility on their property. It contends that the board vote was defective because only three members -- rather than the requisite four -- members participated in the vote and that, even if a valid special permit was granted, it has since lapsed.
It is true, as the town argues, that a valid special permit requires 'a vote of at least four members of a five member board.' G. L. c. 40A, § 9. However, we see no reason to disturb the Superior Court judge's factual finding that the five members of the board voted unanimously to grant the plaintiffs' special permit on November 7, 2001. The November 7 decision explicitly references section 2.5 of the zoning by-laws, which governs special permits only, as well as section 2.6, which governs site plan approval. The Superior Court judge rejected the evidence the town offered to suggest that the reference to section 2.5 was an error and that the November 7 vote granted only a site plan approval. The judge placed weight on town counsel's statement that approval of the special permit application was a necessary part of the process of approving the application for the site plan. Although the judge found that the plaintiffs requested separate hearings and that the board agreed to consider the application for the special permit first, these findings are not inconsistent with the ultimate finding that the board decided the two issues at the same time, or that it reaffirmed its earlier vote.
The judge was also entitled to conclude that the nine-year delay in recording the special permit did not cause it to lapse. 'Under [G. L. c. 40A,] § 9, it is use that must commence within two years to prevent lapse, rather than recording.' McDermott v. Board of Appeals of Melrose, 59 Mass. App. Ct. 457, 461-462 (2003). This is true even where, as here, the recording requirement of the seventh paragraph of G. L. c. 40A, § 11, has not been satisfied. Ibid. at 460-462. The by-laws provide that a special permit will not lapse if good cause is shown for nonuse, and the board chairman testified that diligent pursuit of additional permits constitutes good cause under this exception. The judge found that the plaintiffs were diligently pursuing permits during the period of nonuse, and this finding was well supported in light of the number of necessary permits the plaintiffs applied for and received between 2002 and 2005.
The plaintiffs received a Massachusetts Environmental Policy Act Certificate from the Executive Office of Environmental Affairs on August 30, 2002; a site assignment from the board of health on June 18, 2004; a building permit from the building inspector on August 13, 2004; and an authorization to construct permit from the Department of Environmental Protection on January 25, 2005.
3. Frontage. The town argues that, because the parcel is bisected by the land owned by the Commonwealth for a railroad, it is two 'lots,' and only the eastern one meets the 125 foot frontage requirement. Article 1 of the by-laws defines 'lot' as '[a]ny parcel or tract of land, regardless of its size, owned under a single deed.' It was uncontested that the plaintiffs took title to the entire property under a single deed. This alone satisfied the definition of 'lot' for purposes of the by-laws. Further supporting this conclusion, however, was the uncontested fact that the town treats the property as a single lot, assigning a single number on the tax map and taxing it as a single parcel. Additionally, the plaintiffs' ownership of the land is disturbed only by the narrow strip used for the limited purpose of a railroad. Furthermore, the town at all times knew the railroad bisected the property and was not deceived in any way about the lot's characteristics when it considered, and granted, the requested permits. Based on this evidence, we see no error in the judge's conclusion that the property, despite being bisected by the railroad, met the definition of a single 'lot' under the by-laws.
4. Use of the property. Finally, the town argues that, even if the plaintiffs had a valid special permit, the plaintiffs are -- as a matter of fact -- using the property for uses prohibited under the by-laws. More specifically, the town argues that the judge's finding that the plaintiffs do not engage in 'incineration or reduction or dumping of offal, garbage, or refuse on a commercial basis' within the meaning of § 5.61 of the by-laws, is clearly erroneous. We consider the issue to be a mixed question of law and fact, and review it on that basis.
The town contends that the use of shredders and grinders to reduce the size or volume of material compels the conclusion that the plaintiffs are engaged in 'reduction' within the meaning of the by-laws. The judge found, as a matter of fact, that the shredders and grinders are used only to 'process[] and transport [] C&D waste for recycling and/or disposal at [the plaintiffs'] own or other facilities.' This conclusion was amply supported by evidence that the grinders and shredders are used only to sort and reduce the size or volume of material at the facility.
What remains is for us to determine whether the use of grinders and shredders in this fashion is what is meant in the by-laws by the term 'reduction.' Other prohibited uses in the same section include incineration, the manufacture of chemicals and explosives, fumigation, and 'all other enterprises or uses which in the opinion of the Planning Board are hazardous to property and/or residences of the Town of Ware.' When viewed in this context, we conclude that the term 'reduction' as used in section 5.61 does not mean the mere physical compaction of materials, particularly where it is only incidental to the primary use of the property. See Hall v. Board of Appeals of Edgartown, 28 Mass. App. Ct. 249, 254 (1990) ('[T]erms used in a zoning by-law should be interpreted in the context of the by-law as a whole').
For these reasons, the judgment of the Superior Court is affirmed.
So ordered.
By the Court (Kafker, Fecteau & Wolohojian, JJ.),